Why A New Federal Harassment Law Is A Bad Idea
Azhar Majeed writes for FIRE (Foundation for Individual Rights in Education, defending free speech rights for all on campuses) that Senator Frank Lautenberg is trying to enact a new law against harassment and cyberbullying on campus. Problem is, it could do damage to free speech rights on campus.

Plus, Debra J. Saunders writes for SFGate that Rutgers, where Tyler Clementi recently killed himself after being videotaped being sexual with another guy, already has such a policy in place -- with offenses potentially leading to expulsion:

The list includes "intentionally or recklessly endangering the welfare of any individual" - but more to the point, "making or attempting to make an audio or video recording of any person(s) on University premises in bathrooms, showers, bedrooms, or other premises where there is an expectation of privacy with respect to nudity and/or sexual activity." Under "prohibited conduct," Rutgers lists "cyberbullying."

"I was a little puzzled" by the Lautenberg press release, Robert L. Shibley, senior vice president of the Foundation for Individual Rights in Education (FIRE), told me. "As terrible as the Tyler Clementi case was - and it was - it was already forbidden by harassment policies that every university in America has on the books."

And: "You don't need a new law to know that that's illegal." In fact, New Jersey prosecutors have charged two students with two counts each of invasion of privacy.

Shibley is concerned, and rightly so, that a new law would "attempt to ban speech that is protected by the First Amendment." Wouldn't be the first time a student code of conduct was used to stifle politically incorrect speech. In 2007, a San Francisco State student board filed a complaint against conservative students who held an "anti-terrorism rally" at which they stepped on Hamas and Hezbollah flags because they exhibited "hateful religious intolerance."

When I mentioned that Rutgers already has the policies Lautenberg advocated, spokeswoman Gail Ribas responded, "It would be a national law."

No, it would be a national imposition. It would be another feel-good bill that a headline-happy senator offered without appearing to have asked himself if the law is redundant, necessary or likely to help. Like so much that comes out of Washington these days, it would be clutter.

Comments

"I'll just propose this law, get some headlines, then it will never make it to a vote." He's basically campaigning.

Worse, what if the law does make it onto the books? Yet another unneeded law adding to the already far too huge complex of laws already on the books.

There needs to be some disincentive for creating new laws. Something to make Congress stop and think: "do we really, really need this?" The best suggestion I have seen is simply to limit the total laws on the books. Something like one million plain-english words of law that can apply to individuals, and another one million for businesses. If you want a new law, then you have to throw an old one out.

One million words is a tiny, tiny fraction of what currently exists. But it is the upper limit of what you can expect a normal person to be aware of - about 10 thin novels, or 4 really fat ones. And State and local laws are still to be added in.

bradley13
at October 23, 2010 12:49 AM

Not surprised. Tragic as Tyler Clementi's case was, it was still one incident. I've reached the point where, if something like this happens - one tragic event that the media seizes upon drags out like one of Meatloaf's romantic ballads - I simply wait for the inevitable public outcry for new, redundant laws.

I haven't been surprised by this since Matthew Shepard. Tragic and appalling, certainly, but demanding new laws is an overreaction. Wyoming and the nation already have laws against kidnapping, assault, battery, detaining someone against their will, and murder, homicide, manslaughter, etc. Henderson and McKinney were brought to justice without new laws, laws, laws.

So by the time Tyler Clementi came around, it was just a matter of time before the demand for laws, laws, laws.

Never mind that the idiots who streamed Clementi's romantic tryst are already charged with two counts of invasion of privacy. The justice system appears to be working as intended. If somehow, these two jerks get off scot-free, I might understand the demand for new laws, but please, give the system a chance first.

And lets not forget that if Clementi had chosen to laugh this off instead of killing himself, none of us would have heard about it anyway.

Patrick
at October 23, 2010 1:07 AM

Hey, you do this to yourself. You (of course, not me) insist that your legislators make more laws!

Lawmaking is a capitalist venture. Everybody thinks that more means better!

Radwaste
at October 23, 2010 6:16 AM

The problem that I have with this law is that it will be used for nefarious purposes.

Already -- if you want to campaign for open or concealed carry on campus you are shouted down. Gun owners are dangerous.

It is my understanding that the two students that violated Clementi's privacy will not be charged with anything really except for invading privacy since the state/local laws did not have appropriate protections against the specified behaviour. They cannot be charged by a prosecutor for violating the law at the college. The college can act on college laws and their actions are simply limited to grades and suspension/expulsion.

Local laws have not kept up with all the available ways modern technology can be used to invade privacy, harass, bully, intimidate etc.

So new laws probably are needful. I am not certain if the proposed law is one of them.

LauraGr
at October 23, 2010 7:10 AM

Laura, I don't think that's correct. According to this article, they could be facing five years in prison for "third and fourth degree invasion of privacy" (and I have no idea what that's supposed to mean, committing invasion of privacy to the third and fourth degree).

I've been hearing, although I can't find an article about it right now, that they'll be facing two counts each.

I have no issue with this...unless these two clowns get off on a technicality or something.

Patrick
at October 23, 2010 7:22 AM

Patrick, I think you and I basically said the same thing. They will be charged with invading his privacy.

They will not be charged with anything else because there are no other relevant laws that can be used in this instance.

I could be wrong. I'm ignorant about many subjects but I am willing to learn. I'll need to finish my coffee first, though.

LauraGr
at October 23, 2010 7:30 AM

No one wants to hear this, but most cases of bullying are reciprocal. They're the result of a mutual antagonism and only become bullying when one party gets the upper hand. That's not to say that there aren't incidents where the bullying becomes egregious and one party is clearly in the wrong, but they aren't as easy to define as people assume. There isn't a class of perfect bully victims out their for us to save.

I've followed this issue for a while through my sister, who's a school counselor in NJ. What's apparent is that there's an element among anti-bullying activists that see bullying as a catch-all for their social agenda. They're not only interested in physical bullying and deliberate emotional harm. They want to prescribe all sorts of speech and expression, and behavior, to the point that they're basically dictating the content of all personal communication, and even who you must communicate with.

For instance, they regard exclusion as a form of bullying, and so they want to prevent children from forming tight groups of friends. This is where the anti-best-friend agenda comes from.

Their list of bullying behaviors is endless, because they are defined by the potential subjective impression of the self identified victim. You'll also notice that they tend to track the interests of the activists. One woman that my sister has dealt with is fixated on 'food choices'. She's convinced that kids are being bullied over the food in their lunches. Not surprisingly, she also sees 'food choices' as the underpinning of all sorts of other social problems as well, like war and aggression.

lola
at October 23, 2010 8:29 AM

Wyoming and the nation already have laws against kidnapping, assault, battery, detaining someone against their will, and murder, homicide, manslaughter, etc.

This is why I don't like hate crime legislation. If it's against the law to kidnap and murder anyone, it doesn't matter why you did it or to whom you did it. You did it and should be punished according to the law.

Hate crime legislation is the law is saying some people are more valuable than others and that their murder demands extra punishment.

Conan the Grammarian
at October 23, 2010 1:47 PM

Conan: Hate crime legislation is the law is saying some people are more valuable than others and that their murder demands extra punishment.

I do share your opposition to hate crime legislation...I'm not sure I agree with the message it sends, though.

While I can understand the particularly despicable nature of bias crime -- you go out and kill someone that you probably don't even know who probably never did anything to you, as opposed to someone you might have a grievance against.

Bias crime suggests that the perpetrator would do something similar to all members of this particular category.

I'm not going to get into the "punishing thought" argument, though. We've punished people based on motives for as long as we've had laws in this country, ergo, we've always punished thought.

It just seems to me that if know someone killed someone else, deliberately, and can determine that it was premeditated, we've sufficiently scrutinized the case.

It's not that it suggests that some people are more valuable than others...it's presuming that you would do the same thing to someone else of the same category.

Let's not start presupposing what a person will do if they haven't actually done it, and no evidence exists that they're going to. Yes, these thugs killed Matthew Shepard, and yes, they did it because he was gay. Would they do the same thing to other gays if they didn't get caught? Maybe...I don't know. But Bias Crime Legislation accusingly points the finger and says, "Yes, they would!"

Unless you can find concrete evidence that they were indeed planning to kill someone else, gay or not, I'm against charging people with crimes they haven't committed.

I wonder how many of us would be in jail simply for wanting to kill someone.

...if Clementi had chosen to laugh this off instead of killing himself, none of us would have heard about it anyway.

I don't know. Some things you can't just laugh off. Being made into the star of a secretly-taped Internet porn video by your college roommate is one of them.

But suicide isn't the answer. You can file a civil lawsuit, a complaint with the university, or even criminal charges (if applicable).

Conan the Grammarian
at October 23, 2010 2:14 PM

I wouldn't have expected him to laugh it off, really. But then again, what he did do was out of proportion as well. I simply took it to the other extreme. Your suggestions are much more realistic.

Patrick
at October 23, 2010 2:38 PM

" There isn't a class of perfect bully victims out their for us to save."

I can't agree here. There is a certain class of people that you can peg as being bully fodder, and another certain class that are bullies. Most people, thank god, are in between. I've never (which is not to say it's never happened) heard of a football player being bullied to the extreme that it makes news. But the effiminate/butch/scrawny/smart "different" kid? Yep. And call me crazy, but I think a kid has the right to grow up liking Dungeons and Dragons (totally dating myself here) as opposed to sports without being tormented for it.

At my 1st graders school, they have an inclusive policy. Classes line up for lunch, walk in, and sit at the class table in the order they come in, in. No saving seats, no sitting by friends from another class. They also-as much as possible-break up classes year to year so no clique stays together. I've railed against this to my DH as my daughters got separated from their special friends. And I see that "vulnerable" students are also probably losing their support system, but in this area, I can't fault schools for trying. And there IS no "popular crowd" at this school.

DO we need new laws? Maybe-technology advances. That's about as definitive as I can get on this. It's tough.

momof4
at October 23, 2010 8:18 PM

> There is a certain class of people that
> you can peg as being bully fodder

No, or you'd have "pegged" them already. The purpose of civilization is not to give everyone a 100% unremarkable position in life, as if we all had the same personalities, vigor and drive.

Crid [CridComment at gmail]
at October 24, 2010 2:08 AM

Dungeons and Dragons (totally dating myself here)

Er, I still play D&D. My half-orc fighter is badass.

The purpose of civilization is not to give everyone a 100% unremarkable position in life, as if we all had the same personalities, vigor and drive.

None of momof4's school's policies would do that, anyway. People will always find a way to be remarkable, or not.

Bullying isn't just a phase all kids go through that builds character or some such nonsense. If I had to worry every time I got up to use the bathroom at work that some of my co-workers were going to jump me on the way there, I would have a problem with that. Adults don't take bullying among children very seriously because we're not afraid of those bullies.

MonicaP
at October 24, 2010 5:27 PM

> People will always find a way to be
> remarkable, or not.

That is SO, SO not true. That's the psychotic belief of the Obama Administration, whose endlessly burdensome taxation policies presume that there will always be an unseen fountain of wealth out there.... Unseen to them at least, because none of them have ever created any wealth.

No... You're wrong. Impulses in society to perfectly, PRISSILY shelter the weak and idiots from pain and challenge will always, always interrupt the feedback loops which allow ALL people to better serve their fellows.

You are mistaken. If you want to protect the timid and the daft from bullies, it's OK by me. Beyond that, keep your hands to yourself.

Crid [CridComment at gmail]
at October 25, 2010 5:17 AM

I was bullied in grade school. Nothing physical, but constant taunts about pretty much everything else. And there was a point when I was 10 that I wanted to kill myself over it. I'm very grateful I didn't as I like myself these days.

Bullying is not always done just because the person is a dick (though it might be). A lot of the time bullies themselves have self esteem issues and they're acting out because they need to feel better about themselves. Or they're trying to look cool to their peers.

While it's tragic that somebody might kill themselves over bullying (even in these extreme cases), you have to keep in mind that THEY MADE THAT CHOICE. Was it the best option? Not so much.

However, instead of imposing laws on our free speech (there's too many already!) The best we can do is make sure that "vulnerable" people (nerds/homosexuals/etc.) have a strong support system. If bullies are so identifiable as jocks (/sarcasm), shouldn't potential victims be? To me this not not mean more useless legislation.

This means that we, as individuals, treat each other as human beings. Yes, there are bad people out there (and they're always making the news!) but there are lots of good people as well. If you take the time to stop and look around, sometimes you can be the person who makes a difference in somebody else's life.

However, I refuse to advocate anything that imposes on free speech. "I may not agree with what you say, but I will defend to the death your right to stay it." Free speech does not exist to protect popular ideas, it exists to protect unpopular ones.

Cheryl
at October 25, 2010 12:30 PM

If it comes from Lautenberg, you're pretty safe in concluding that it's bad. He's one of the biggest big-government nanny-state dirtbags out there.